SZJOC v Minister for Immigration
[2008] FMCA 637
•9 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 637 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution for reason of religion – credibility – whether the Tribunal fell into error by attaching no weight to the applicant’s evidence – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425,474 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed SZHYH v Minister for Immigration & Anor [2007] FMCA 1039 distinguished Applicant V324 of 2004 v Minister for Immigration [2004] FCAFC 259 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 referred to. |
| Applicant: | SZJOC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1997 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 10 & 17 December 2007,10 April & 9 May 2008 |
| Date of Last Submission: | 9 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Izzo |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1997 of 2007
| SZJOC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
Procedural History
These proceedings before the Court have taken longer to get to a hearing than most matters. The difficulty has been caused because the Applicant speaks a particular Chinese dialect and appears not to speak Mandarin at all. The proceedings have been adjourned on several occasions because the Court has been unable to secure the services of an interpreter with the appropriate language skills.
On the last occasion the matter was before the Court, which was 10th April 2008, the only interpreter available was a very experienced interpreter in the Mandarin language. He informed the Court that he was having great difficulty in communicating with the Applicant, notwithstanding the fact that she came from an area only about 80 kilometres from where he used to live in China. The interpreter took the view that he was not able to provide a sufficient standard of interpreting due to the difficulties in communication. The interpreter is a gentleman well known to this Court and is held in high regard for his professional skills.
The Applicant is not legally represented. In all the circumstances, I considered that it would not be fair from a procedural point of view to continue with the hearing. I adjourned the matter until today and specially fixed the application for hearing on this date as I was informed that an interpreter with the requisite skill in the particular dialect would be available to assist. Fortunately, he has been able to assist the Applicant and the Court and before the hearing commenced I asked him to confirm that in his opinion the Applicant was able to communicate appropriately with him in her language. He assured me that that was the case and so I have proceeded to hear the application.
Background
The Applicant asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 22nd May 2007 and handed that decision down on 31st May 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Tribunal decision was the second decision made by the Refugee Review Tribunal reviewing a decision of a delegate of the Minister made on 8th May 2006. The decision of the first Tribunal was set aside by the Federal Magistrates Court on 6th March 2007.
Application for Review by the Refugee Review Tribunal
The Refugee Review Tribunal invited the Applicant to another hearing which took place on 17th May 2007. The interpreter who provided assistance to the Applicant at the Tribunal hearing was, I notice, the same gentleman who has assisted the Applicant today. He has the appropriate qualification in the Fuqing dialect of Chinese.
The Applicant has applied for a protection visa because she claims a fear of persecution if she were to return to China on the grounds of her religious belief. She claims to have attended religious ceremonies in a family church in her home village. The church to which she had belonged was not one of the official or registered churches but an unofficial or unregistered church. The Applicant claimed that the attendance by participants in the church services attracted the attention of the PSB and she was arrested and detained. She claims that she was first arrested in December 2003 and detained for one day, along with other participants in the religious ceremony. She claims that she and all the others were each fined Renminbi 1,000.
The Applicant claimed that in April 2004 she was again arrested and this time she was detained for a week. When she was released she was required to pay Renminbi 3,000. The Applicant further claims that she was arrested and detained again in May 2005 whilst participating in a religious gathering at the duck farm which she ran. On this occasion she was detained for a month. After that the Applicant left China for Australia.
The Applicant attended a hearing of the Tribunal where she gave evidence. The Tribunal Member asked her questions about her case and the Tribunal handed down its decision on 31st May 2007. A copy of the Tribunal decision can be found in the Court Book at pages 211 through to 220.
In the decision the Tribunal set out the Applicant's claims and evidence at pages 214 and 215 of the Court Book. The Tribunal also referred to Independent Country Information which is set out in some detail at pages 215 through to 218 of the Court Book.
The Tribunal’s Findings and Reasons
In the Tribunal's findings and reasons, the Tribunal set out that it was satisfied, on the basis of the Applicant's passport, that she was indeed a citizen of China. Whilst the Tribunal noted the Applicant's claims to have been persecuted for her Christian beliefs and practices in China, the Tribunal did not accept her claims that she had been persecuted for her religious beliefs, including her claims that she had been detained and persecuted by the PSB.
The Tribunal was prepared to accept that the Applicant may have participated in Christian activities in the Fujian province even though the Tribunal took the view that she was unable to articulate clearly the nature of her Christian beliefs.
The reasons which the Tribunal gave for not accepting her claims of persecution were that, in the Tribunal's view, the Applicant had, on her own admission, claimed that she did not have a leadership or preaching role in her religious activities. The Tribunal relied on Independent Country Information which indicated that Christians in Fujian province had generally been treated more liberally than in other provinces of China and any persecution that had occurred had involved leading members of the clergy. It was the Tribunal's view that the Applicant did not have a sufficiently prominent role in unauthorised church activities to have caused the persecution by the PSB which she claimed to have experienced or which would lead to persecution if she were to return to China.
The Tribunal also considered information from the Australian Department of Foreign Affairs and Trade that said that people who had come to the adverse attention of the Chinese government would have difficulty in obtaining a legal passport.
“The Tribunal considered that the fact that the Applicant was issued a genuine passport in her own name constitutes additional evidence that she was not a person of interest to the Chinese authorities and that fact cast further doubt on her claimed fear of persecution for her claimed religious beliefs.”
The Tribunal also noted that the Applicant had provided documents, including carbon copies of receipts which she claimed were fines paid to the PSB and translated copies of statements by people claiming to be involved in the underground church movement and claiming that the Applicant had attended church meetings. The Tribunal said:
“The Tribunal has considered these documents but attaches greater weight to the considerations set out above in forming its view that the applicant does not meet the Convention definition of a refugee.”[1]
[1] See Court Book at page 219.
The Tribunal was not satisfied that the Applicant had suffered Convention‑related harm in China and was not satisfied that Convention‑related harm would befall her in the reasonably foreseeable future if she were to return to China. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 28th June 2007. The Applicant has filed an amended application on 10th September 2007 in which she seeks the following orders:
a)A declaration of the Tribunal that the decision was invalid and contrary to law.
b)An order in the nature of certiorari quashing or setting aside the Tribunal decision.
c)An order in the nature of mandamus remitting her application to a differently constituted Refugee Review Tribunal to be determined in accordance with law.
I would comment at this stage that if the Court were to be satisfied that the Applicant is entitled to relief, I do not consider it appropriate to make an order that the Refugee Review Tribunal, considering an application again, should be differently constituted. I am of the view that the Court does not have the power to make that order and I rely on the decision of the Full Court of the Federal Court of Australia in SZEPZ v Minister for Immigration and Multicultural Affairs[2]. In any event, in order to grant the Applicant the relief that she seeks, the Court must be satisfied that the decision of the Tribunal is affected by jurisdictional error.
[2] [2006] FCAFC 107
In her amended application the Applicant sets out three grounds:
a)That the Tribunal failed to comply with the requirements of s.424A(1) of the Migration Act.
b)That the Tribunal made its finding based on incorrect evidence obtained from independent sources.
c)That the Tribunal failed to consider the Applicant's documentary evidence properly and fairly.
The Applicant also submitted a written outline of submissions which, in six paragraphs, sets out six grounds, some of which appear to be grounds that have not been raised in the amended application. Nevertheless, after providing counsel for the First Respondent with a copy of the submission and allowing time for him to obtain instructions, I was satisfied that the hearing should proceed. The six grounds set out in the Applicant's written submission are as follows:
a)Misunderstanding due to different culture.
b)Finding being not made in a discrete manner.
c)Reasoning based on wrong information.
d)A premature decision.
e)Apprehension of bias on the part of the Tribunal.
f)Failure in complying with s.424A.
Submissions
The Applicant was offered the opportunity of making an oral submission to the Court in addition to her written submission but told the Court that everything that she wished to say was in her written submission. Counsel for the Respondent has supplied a written outline of submissions and made oral submissions to the Court. I have read all that material. I will deal with the grounds in order, first from the amended application and then from the written submissions.
Applicant’s Amended Application
Ground 1 – Failure to comply with s.424A.
The Applicant's first ground alleges a failure to comply with the provisions of sub‑section 424A(1) of the Migration Act. The Applicant claims that the Tribunal has:
·failed to provide her in writing details of information that was inconsistent with her evidence from independent sources, such as the latest United States State Department's International Religious Freedom Report;
·failed to give her the opportunity to comment on that information; and
·failed to ensure that she understood why it was relevant.
Independent country information such as the United States State Department's Report on international religious freedom does not come under the heading of "Information" which the Tribunal is required to put to the applicant under sub‑section 424A(1) of the Migration Act. It is information that is excluded under sub‑section 424A(3)(a) of the Act.
It is clear that in making its decision the Tribunal considered:
a)the Applicant's evidence to the Tribunal, and
b)Independent Country Information.
Insofar as that material formed the reason or part of the reason for the Tribunal to affirm the delegate's decision, none of the information referred to comes under the heading of "Information" which is required to be put to the Applicant by the provisions of sub‑section 424A(1) of the Act.
There is no breach of s.424A of the Migration Act, so the Applicant's first ground has not been made out.
Ground 2 - Tribunal made its finding based on incorrect evidence obtained from independent sources.
The Applicant's second ground claims that the Tribunal made its finding based on incorrect evidence obtained from independent sources. The particulars of that claim are:
The Tribunal used the evidence from independent sources such as the latest US State Department's International Religious Freedom Report incorrectly, because those evidences cites by the Tribunal were solely in relation to those Christians in “official church” instead of the ones like me, from “unofficial” or “underground” church.
The material referred to by the Tribunal included material from a number of sources and not just from the United State Department. The Tribunal considered research from the Canadian Immigration and Research Directorate which was set out at pages 215 and 216 of the Court Book. That material clearly related to people who attended at urban house churches or were members of unregistered Protestant churches. The Canadian Immigration and Research Directorate specifically referred to Fujian province, which is the area from which the Applicant comes. That material at page 217 and page 218 of the Court Book referred to the activities of unregistered Christian groups.
Whether or not the United States State Department report related to the official Chinese churches rather than the unregistered or illegal churches, the bulk of the material to which the Tribunal referred related to the unofficial or unauthorised or unregistered churches of the type to which the Applicant claimed to have belonged. The material specifically referred to members of such churches in the province from which the Applicant comes.
The Applicant's second ground has not been made out on a factual basis even if such an error were, in fact, one which could constitute jurisdictional error. It follows that the Applicant's second ground must fail.
Ground 3 – Failure to consider Applicant’s documentary evidence
The third ground in the amended application is the claim that the Tribunal failed to consider the Applicant's documentary evidence properly and fairly. The amended application says:
The Tribunal fell into jurisdictional error by according no weight to the documentary evidences that I have submitted to the Tribunal; and the Tribunal failed to have a genuine attempt to look at the documentary evidences.
The Applicant refers the Court to the decision of Raphael FM in SZHYH v Minister for Immigration & Anor[3]. In that case his Honour looked at a situation where a Tribunal made a decision to accord no weight to a document which was a piece of corroborative evidence relating to the Applicant's claims. In the course of his findings, Raphael FM said:
“It is one thing to ‘place no weight’ on a document that comes from a country where document procurement is rampant and the applicant is made aware of such a concern. It is quite another to do so where there is no attack on the document per se, merely upon the way in which the applicant has given evidence relating to something which the document does not address; in this case the date of the election.”[4]
[3] [2007] FMCA 1039
[4] [2007] FMCA 1039 at [18]
His Honour went on, in [19], to refer to the fact that in the case before him the Tribunal gave no other reasons for its rejection of the Applicant's document. He went on to say:
“But as this is not a case where the credibility of the applicant had been destroyed such that a piece of corroborating evidence could be disregarded: see WAIJ v Minister for Immigration per Lee and Moore JJ at [27]; S20/2002 per McHugh and Gummow JJ at [49], I would find that the Tribunal fell into jurisdictional error by according no weight to the certificate.”
In my view, the decision in SZHYH can be distinguished on its facts.
In this case, the Tribunal did not accord “no weight” to the Applicant's documentary evidence. The Tribunal said:
The Tribunal has considered these documents but attaches greater weight to the considerations set out above in forming its view the Applicant does not meet the Convention definition of a refugee"[5]
[5] See Court Book at page 219
This is not a case where the Tribunal gave no weight to the Applicant's documents. The Tribunal clearly considered them but gave greater weight to other considerations. That is purely a matter for the Tribunal. It is the Tribunal that is the fact‑finding authority and it is for the Tribunal to determine what weight it gives to particular items of evidence. I am referred by counsel for the Minister to Applicant V324 of 2004 v Minister for Immigration[6] at [40].
[6] [2004] FCAFC 259
In my view, the Applicant's third ground has not been made out because the Tribunal did not decide to give no weight to her documentary evidence.
Applicant’s Written Outline of Submissions
I turn now to the matters set out in the Applicant's written outline of submissions.
Ground 1
The first ground is entitled "Misunderstanding Due To Different Culture". The Applicant says:
“During the Tribunal hearing, the Member asked me whether my religion was related to Protestant or Catholic faiths. I did not understand the word "Protestant". I only knew that I am an underground Christian.”
The Applicant went on to say:
“…It is due to the misunderstanding resulting from the different cultural background that the Member came to the conclusion that my answer was unsatisfactory.”
This submission can be answered by saying, first of all, the Applicant is challenging a factual finding by the Tribunal and is seeking to embark on a merits review of the Tribunal decision which is not, of course, available on judicial review. In any event, however, it is clear that the Tribunal did accept that the Applicant had participated in Christian activities. The Tribunal said:
“The Tribunal is willing to accept that the applicant may have participated in Christian activities in Fujian Province.”[7]
[7] See Court Book at page 218
Ground 2
The Applicant's second point is headed "Finding not being made in a discrete manner". The Applicant particularises that by saying:
“The Tribunal Member only tested my religious knowledge by a single question mentioned above. Based on my answer to this single question, Refugee Review Tribunal concluded that I only had limited religious knowledge. This conclusion was relying on or partially relying on Members' misunderstanding of my Chinese cultural concept (as I explained in item 1). This misunderstanding has affected the Member’s finding of the facts.”
Quite clearly, this again is a challenge to the Tribunal's factual findings and it does not demonstrate any jurisdictional error. Merits review is not available on judicial review of the decision of the administrative decision‑maker.
Ground 3
The Applicant's third ground is headed "Reasoning based on wrong information". The Applicant claims:
“The Tribunal claimed, in the third paragraph of "finding and reasons" that I admitted that I did not have leading or preaching role in my religious activities. This is not true. On the contrary, anyone who has listened to the tape will know that I said on many occasions that I had preached to others. Since the Tribunal's reasoning was based on the wrong information, the final conclusion cannot be valid.”
The Applicant has not provided to the Court any transcript of the Tribunal hearing. In any event, the Tribunal relied on the Applicant's claims at both pages 215 and 218 of the Court Book that she did not have a leadership or preaching role in the church activities. In particular, the Tribunal said:
“She confirmed her claim in her written statement that she did not have a leading or preaching role at the religious gatherings, but also said that she had a role in organising gatherings and also shared her beliefs with others at smaller gatherings. She also described the nature of her religious beliefs.”[8]
[8] See Court Book at page 215
In my view, the Tribunal has not been shown to have misunderstood the Applicant's claims about her role in her religious activities.
Ground 4
The Applicant's fourth ground is related to the Applicant's third ground. It is headed "A premature decision". The Applicant claims:
“Based on member's presumption that I did not have the leading or preaching role, the Tribunal then, without any further reason, decided not to accept the evidence on my persecution. This is a premature conclusion that closes the members' mind for further impartial consideration on any new future evidence from me.”
I have already indicated that the Applicant's claim that the Tribunal Member had misunderstood her evidence has not been made out. This ground, the fourth ground, also contains an allegation of bias. It is well established that bias or bad faith is a serious allegation which must be strictly alleged and proved. (See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[9]).
[9] [2002] FCAFC 358
In my view, the Applicant has not provided any evidence of bias and the claim of bias has not been made out.
Ground 5
The Applicant's fifth ground is, in fact, headed "Apprehension of bias on the part of the Tribunal". The Applicant again claims that during the hearing she had preached to other members of her religion and was an organiser of the underground church activities. The Tribunal did, at page 215 of the Court Book, accept that the Applicant had some role but formed the view that the Applicant was not a person who had a leading role in the activities of the church.
As Mr Izzo of counsel who appeared for the Minister submits, this was really a question of weight. The Applicant went on to complain that the entire hearing before the Tribunal lasted for less than an hour. That is not evidence of bias.
There is no evidence upon which the Court can be satisfied that there is any apprehension of bias on the part of the Tribunal Member. There is no indication that the Tribunal did not understand and consider the Applicant's evidence about her role in the activities of her church.
Ground 6
The sixth ground in the statement of particulars alleges a failure to comply with s.424A of the Migration Act. The Applicant claims:
“The Member did not write to me regarding the information adversely cited in the decision record.”
As I have earlier indicated, the Tribunal based its decision on the Applicant's evidence to the Tribunal and Independent Country Information to which it referred. That material is excluded from the operation of sub‑section 424A(1) by sub‑section 424A(3) of the Act. This ground has not been made out.
Conclusion
I am mindful of the fact that the Applicant is not legally represented. Apart from the Applicant's submissions and the Respondent's submissions, I have looked at the Tribunal decision and supporting material in order to ascertain whether any arguable case of jurisdictional error could be made to which the Applicant has not referred. I am unable to discern any arguable case of jurisdictional error and I am of the belief that there is none.
Accordingly, in the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub‑section 474(2) of the Migration Act. Privative clause decisions are not subject to remedies such as declaration, certiorari or mandamus because they are final and conclusive. It follows that as a decision is a privative clause decision, the application must be dismissed.
There is an application for costs on behalf of the First Respondent, Minister, in the sum of $5,000.00. The Applicant has been unsuccessful in her claim and this is an appropriate matter for a costs order. The amount of $5,000.00 is an amount that is covered in the schedule which appears in the Federal Magistrates Court Rules. This is a case, in any event, where there have been more Court events than would normally be the case.
The application first came before the Court on 16th July 2007 where directions were made for hearing. There were and there have been difficulties in obtaining an appropriate interpreter and so the matter has been before the Court on 15th October and 10th December 2007, 17th December 2007, 10th April 2008 and today.
In my view, the amount sought, $5,000.00 is a reasonable and appropriate figure and I order that the Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 20 May 2008
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